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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAY-2023
07:55 AM
Dkt. 60 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
MALUSIO LATU, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 2DTA-21-01135)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Defendant-Appellant Malusio Latu (Latu) appeals from
the (1) January 27, 2022 "Order and Notice of Entry of Order,"
(2) May 11, 2022 "Judgment and Notice of Entry of Judgment," and
(3) February 23, 2022 "Findings of Fact, Conclusions of Law, and
Order [(FOFs/COLs)] Denying [Latu]'s Motion to Dismiss," all
entered and filed by the District Court of the Second Circuit
(District Court),1 convicting Latu of Operating a Vehicle Under
1 The Honorable Lauren M. Akitake presided over the January 27,
2022 Motion to Suppress hearing and filed the "Order and Notice of Entry of
Judgment" and the FOFs/COLs. The Honorable Christopher M. Dunn presided over
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the Influence of an Intoxicant (OVUII), in violation of Hawaii
Revised Statutes (HRS) § 291E-61(a)(1) and (3).
On appeal,2 Latu contends that: (1) the "trial court
abused its discretion when it failed to apply the provisions of
State v. Thompson,[3] to dismiss the complaint," and with respect
to the FOFs/COLs denying the motion to dismiss, specifically
challenges COLs 1(a), 1(b), 1(c), 1(d), 2(a), and 2(c);4 and (2)
the May 11, 2022 bench trial and entered the "Judgment and Notice of Entry of
Judgment."
2 Latu raises three points of error in his Opening Brief, which we
have consolidated into two points for concision.
3 In Thompson, 150 Hawai‘i 262, 267-68, 500 P.3d 447, 452-53 (2021),
the Hawai‘i Supreme Court held that failure to comply with HRS § 805-1 renders
a complaint "fatally defective," and that such a complaint cannot be used to
support the issuance of an arrest warrant or penal summons.
4 The challenged COLs state:
1. The Requirements of HRS § 805-1 and Thompson Do Not
Apply Where the State Did Not Seek an Arrest Warrant or
Penal Summons Contemporaneously With the Filing of the
Complaint.
a. HRS § 805-1 is concerned with cases where the
prosecution seeks an arrest warrant or penal summons
contemporaneously with the filing of a complaint.
Stated differently, the requirements of the statute
do not apply where the defendant is already in
custody or has posted bail/bond when a complaint is
filed against them.
b. The text of HRS § 805-1 indicates that the statute
is concerned with providing a mechanism for a person
to be brought before the court, through the issuance
of an arrest warrant or penal summons, to answer the
allegations in a complaint.
c. In Thompson, the complaint at issue was the basis
for the issuance of a penal summons. 150 Hawai‘i at
264, 500 P.3d at 449. After the dismissal of the
complaint was reversed by the Intermediate Court of
Appeals ("ICA"), Id. at 266, 500 P.3d at 451,
Thompson asserted "that the ICA erred in holding that
a complaint used to seek a penal summons need not
satisfy the requirements of HRS § 805-1." Id. at 267,
500 P.3d at 452. The Supreme Court agreed, holding
that the requirements of the statute "apply to all
criminal complaints, regardless of whether the State
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Latu "was never properly arraigned before the District Court."
(Footnote added).
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve Latu's
points of error as follows, and affirm.
The following facts are from the District Court's
unchallenged findings and the record.5 On December 10, 2021, the
Hawai‘i Supreme Court issued a published opinion in Thompson.
uses the complaint to seek a penal summons or an
arrest warrant." Id. (emphasis added); see also Id.
[sic] at 270, 500 P.3d at 455 ("HRS § 805-1 does not
distinguish between complaints for penal summons and
complaints for arrest warrants. The ICA therefore
erred in holding that the State need not comply with
its statutory obligations simply because it sought a
penal summons."). In other words, Thompson held that
HRS § 805-1 applied to complaints for both penal
summons and arrest warrants. It did not hold that the
reach of the statute extends to cases where a
complaint is not used to seek either.
d. Accordingly, HRS § 805-1 and Thompson do not apply
to the instant case, where the prosecution did not
seek an arrest warrant or penal summons
contemporaneously with the filing of the Complaint.
2. The Complaint in the Case Satisfies [Hawai‘i Rules of
Penal Procedure (HRPP)] Rule 7(d).
a. Because the prosecution did not seek an arrest
warrant or penal summons contemporaneously with the
filing of this Complaint, HRPP Rule 7(d) is the
dispositive rule that must be complied with.
. . . .
c. The Complaint e-filed by the State in the instant
case complies with HRPP Rule 7(d) as it: (1) contains
"a plain, concise and definite statement of the
essential facts constituting the offense charged";
(2) was electronically signed by the prosecutor; and
(3) cites the statute that Defendant is alleged to
have violated. HRPP Rule 7(d).
5 "[U]nchallenged findings of fact are binding upon appellate
courts." State v. Rodrigues, 145 Hawai‘i 487, 497, 454 P.3d 428, 438 (2019)
(citations omitted).
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FOF 1. On December 17, 2021, Latu was arrested for OVUII and
ordered to appear in the Wailuku District Court. FOF 2. On
December 28, 2021, the State filed a Complaint with the
declaration language provided by HRPP Rule 47(d):6 "I [] declare
under penalty of law that the foregoing is true and correct to
the best of my knowledge and belief[.]" FOF 3. The State did
not seek an arrest warrant or penal summons contemporaneously
with the Complaint or at any time in this case. FOF 4.
On January 10, 2022, Latu filed a Motion to Dismiss,
arguing that the Complaint was "fatally defective" pursuant to
Thompson and HRS § 805-1,7 which Latu construed as requiring a
"Sworn Declaration signed by the Complainant," or "the signature
of the Complainant." On January 18, 2022, the State filed a
Memorandum in Opposition to the Motion to Dismiss, asserting
6 HRPP Rule 47(d), entitled "Declaration in lieu of affidavit"
provides:
In lieu of an affidavit, an unsworn declaration may be made by a
person, in writing, subscribed as true under penalty of law, and dated,
in substantially the following form:
"I, ____________, declare under penalty of law that the foregoing
is true and correct to the best of my knowledge and belief.
Dated:
__________________
(Signature)"
7 HRS § 805-1 (2014) provides:
§805-1. Complaint; form of warrant. When a complaint
is made to any prosecuting officer of the commission of any
offense, the prosecuting officer shall examine the
complainant, shall reduce the substance of the complaint to
writing, and shall cause the complaint to be subscribed by
the complainant under oath, which the prosecuting officer
is hereby authorized to administer, or the complaint shall
be made by declaration in accordance with the rules of
court. . . .
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that the Complaint was sufficient under HRPP Rule 7(d),8 and that
HRS § 805-1 only applied to complaints for arrest warrants and
penal summonses. The District Court denied the Motion to
Dismiss at a hearing on January 27, 2022.
On February 23, 2022, the District Court filed its
FOFs/COLs, in which it concluded in COL 1 that HRS § 805-1 and
Thompson was not applicable where the State "did not seek an
arrest warrant or penal summons." In COL 2, the District Court
concluded that the Complaint satisfied HRPP Rule 7(d), as the
Complaint contained "a plain, concise and definite statement of
the essential facts constituting the offense charged"; was
"electronically signed by the prosecutor"; and cited the
"statute that [Latu] [was] alleged to have violated." (Internal
quotation marks omitted).
On May 11, 2022, a bench trial was held. Prior to the
start of trial, the District Court requested the prosecutor to
"rearraign" Latu. Latu objected as follows:
[DEFENSE COUNSEL]: -- for the record, I would like to
object under Rule 7(a) of the Rules of Penal Procedure. A
charge against a defendant must be an indictment,
superseding indictment, an information, or complaint in
court, provided that the accused is charged with an offense
that has a max -- a maximum sentence of six months in
prison, other than operating a vehicle under the influence
of an intoxicant. So it is precluded from doing an oral
charge. That's what Rule 7(a) says. So --
8 HRPP Rule 7(d) provides in pertinent part:
Rule 7. INDICTMENT, INFORMATION, OR COMPLAINT.
. . . .
(d) Nature and contents. The charge shall be a plain,
concise and definite statement of the essential facts
constituting the offense charged. . . . A complaint shall
be signed by the prosecutor. The charge need not contain a
formal conclusion or any other matter not necessary to such
statement. . . . The charge shall state for each count the
official or customary citation of the statute, rule,
regulation or other provision of law which the defendant is
alleged therein to have violated. . . .
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THE COURT: So he's -- he's been provided with a
written complaint. I'm just asking that that written
complaint be read aloud to the Court and to Mr. Latu. You -
- over your objection --
[DEFENSE COUNSEL]: Okay.
THE COURT: -- I'm going to allow the State to do --
I'm going to ask the State to do it. And I frankly can't
conceive of what the prejudice to your client would be.
[PROSECUTOR]: On or about the 17th day of December,
2021, in the Division of Wailuku, County of Maui, State of
Hawaii, Malusio Latu did intentionally, knowingly, or
recklessly operate and/or assume actual physical control of
a vehicle on a public way, street, road, or highway while
under the influence of alcohol, in an amount sufficient to
impair his normal mental faculties or ability to care for
himself and guard against casualty, and/or did, with .08 or
more grams of alcohol per 210 liters of breath, operate
and/or assume actual physical control of a vehicle on a
public way, street, road, or highway, thereby committing
the offense of Operating a Vehicle Under the Influence of
an Intoxicant in violation of Sections 291E-61(a)(1) and/or
291E-61(a)(3), and subject to sentence -- to Sections
291E-61(b)(1) and 291E-61(b)(4) of the Hawaii Revised
Statutes.
If convicted of this offense, Malusio Latu will be --
shall be subject to sentencing in accordance with Section
291E-61(b)(4) of the Hawaii Revised Statutes, where Malusio
Latu was a highly intoxicated driver, to wit, a person
whose measurable amount of alcohol was .15 or more grams of
alcohol per 210 liters of breath or .15 or more grams of
alcohol per 100 milliliters or cubic centimeters of blood
at the time of the instant offense.
THE COURT: And to that charge, Mr. Latu has previously
entered a plea of not guilty. The Court will confirm that
not guilty plea.
After the trial, the District Court found Latu guilty of OVUII.
This appeal followed.
(1) Latu argues that the District Court erred in
denying the Motion to Dismiss because the Complaint was
defective under HRS § 805-1, as no witness with direct
observations of Latu's misconduct executed an "affidavit" or
"declaration in lieu of the affidavit" to support personal
knowledge of the alleged crime. Latu argues that the District
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Court erred when it concluded in COLs 1 and 2, that the
requirements of HRS § 805-1 and Thompson do not apply when the
State is not seeking an arrest warrant or penal summons, and
that the Complaint was sufficient because it complied with HRPP
Rule 7. Latu's arguments are without merit, in light of State
v. Mortensen-Young, 152 Hawai‘i 385, 526 P.3d 362 (2023).
Whether a complaint complied with an applicable
statute and/or rule is a question of law we review de novo.
Thompson, 150 Hawai‘i at 266, 500 P.3d at 451. "A trial court's
ruling on a motion to dismiss charge is reviewed for an abuse of
discretion." Id. at 266-67, 500 P.3d at 451-52 (internal
citation, brackets, and quotation marks omitted) (quoting State
v. Hinton, 120 Hawai‘i 265, 273, 204 P.3d 484, 492 (2009)). COLs
are reviewed under the "'right/wrong'" standard and will not be
overturned when it is supported by the "'trial court's [FOFs]
and . . . reflects an application of the correct rule of
law[.]'" Mortensen-Young, 152 Hawai‘i at 392, 526 P.3d at 369
(citation omitted).
In Mortensen-Young, the Hawai‘i Supreme Court held that
HRS § 805-1 applies only to criminal complaints used to obtain a
penal summons or arrest warrant. 152 Hawai‘i at 397, 526 P.3d at
374. In other cases, such as the OVUII prosecutions at issue in
Mortensen-Young, HRPP Rule 7 provides the proper framework to
analyze the sufficiency of complaints. Id. at 399, 526 P.3d at
376. In Mortensen-Young, the supreme court held that each of
the appellees was properly charged with the offense of OVUII by
a complaint signed by the prosecutor, pursuant to HRPP Rule
7(d), which does not require that a "'charging instrument in a
misdemeanor case be signed by anyone other than a prosecutor'"
or be "'subscribed under oath or made by declaration in lieu of
an affidavit by anyone.'" Id.
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Here, as in Mortensen-Young, HRS § 805-1 is
inapplicable because the Complaint was not used to obtain a
penal summons or arrest warrant. The Complaint set forth a
concise and definite statement of the essential facts, was
signed by the prosecutor, and referenced the statute that Latu
allegedly violated, as required by HRPP Rule 7(d). The
Complaint was sufficient to initiate the subject prosecution,
and Latu's contention is without merit. See id. at 397, 399,
526 P.3d at 374, 376. COLs 1 and 2 were correct, and the
District Court did not abuse its discretion in denying the
Motion to Dismiss. See id. at 392, 526 P.3d at 369; Thompson,
150 Hawai‘i at 266-67, 500 P.3d at 451-52.
(2) Latu argues that he was "never arraigned prior to
trial"9 and was improperly "orally arraigned at his trial." Latu
claims that because he objected to the oral arraignment at
trial, "informing the District Court that HRPP Rule 7(a)[10]
9 As to Latu's contention that he was "never arraigned prior to
trial," Latu does not point to "where in the record the alleged error was
objected to or the manner in which the alleged error was brought to the
attention of the court[.]" Hawai‘i Rules of Appellate Procedure (HRAP) Rule
28(b)(4)(iii). On the day of trial, Latu objected to the State's reading of
the Complaint on the grounds that the State was precluded "from doing an oral
charge" for OVUII pursuant to HRPP Rule 7(a). Latu never argued below that
an arraignment had to have occurred "prior to trial," and this argument is
disregarded. See HRAP Rule 28(b)(4) ("Points not presented in accordance
with this section will be disregarded."); State v. Hoglund, 71 Haw. 147, 150,
785 P.2d 1311, 1313 (1990) ("Generally, the failure to properly raise an
issue at the trial level precludes a party from raising that issue on
appeal.") (citation omitted). Even assuming arguendo this argument was
preserved, it nevertheless lacks merit. See State v. Kikuchi, 54 Haw. 496,
496-500, 510 P.2d 781, 781-83 (1973) (holding that because the defendant, who
was represented by counsel, did not object to the lack of formal arraignment
and plea prior to trial or at trial, but rather "postured himself as being
not guilty of the accusation" and proceeded with trial, the defendant
suffered no "prejudice" and such errors were harmless).
10 HRPP Rule 7(a) provides in pertinent part:
(a) Use of Indictment, Information, or Complaint. The
charge against a defendant is . . . a complaint filed
in court, provided that, in any case where a defendant
is accused of an offense that is subject to a maximum
sentence of less than 6 months in prison (other than
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provides that a charge for OVUII[] cannot be orally charged,"
the error cannot be considered harmless, citing State v. Basnet,
131 Hawai‘i 286, 318 P.3d 126 (2013).
The State argues that Latu was properly arraigned
prior to trial pursuant to HRPP Rule 5(b)(1)11 before the trial
Operating a Vehicle Under the Influence of an
Intoxicant) and is issued a citation in lieu of
physical arrest pursuant to Section 803-6(b) of the
Hawaii Revised Statutes and summoned to appear in
court, the citation and an oral recitation of the
essential facts constituting the offense charged as set
forth in Rule 5(b)(1), shall be deemed the complaint,
notwithstanding any waiver of the recitation. The
prosecutor's signature upon the citation shall not be
required.
(Emphasis added). Pursuant to HRPP Rule 7(a), an offense of OVUII cannot be
orally charged, but must be charged by a filed complaint.
11 HRPP Rule 5(b)(1), entitled "Offenses Other Than Felony,"
provides in pertinent part:
(1) Arraignment. In the district court, if the offense
charged against the defendant is other than a felony, the
complaint shall be filed and proceedings shall be had in
accordance with this section (b). A copy of the complaint,
including any affidavits in support thereof, and a copy of
the appropriate order, if any, shall be furnished to the
defendant. . . . When the offense is charged by complaint,
arraignment shall be in open court or by video conference
when permitted by Rule 43. The arraignment shall consist of
the reading of the complaint to the defendant and calling
upon the defendant to plead thereto. . . . The arraignment
shall consist of a recitation of the essential facts
constituting the offense charged to the defendant and
calling upon the defendant to plead thereto. The defendant
may waive the reading of the complaint or the recitation of
the essential facts constituting the offense charged at
arraignment, provided that, in any case where a defendant
is summoned to be orally charged by a citation as
authorized by Rule 7(a), the recitation of the essential
facts constituting the offense charged shall be made prior
to commencement of trial or entry of a guilty or no contest
plea. In addition to the requirements of Rule 10(e), the
court shall, in appropriate cases, inform the defendant of
the right to jury trial in the circuit court and that the
defendant may elect to be tried without a jury in the
district court.
(Emphases added). Thus, a district court arraignment for a non-felony
offense proceeding by complaint requires that the arraignment "consist of a
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began, because the Complaint was "previously electronically
filed"; the prosecutor read the Complaint to Latu; and although
the District Court entered a not guilty plea on behalf of Latu,
there was no objection. The State contends that:
[W]here a complaint previously electronically filed and
then read aloud to the defendant and defense counsel prior
to trial with no request for a continuance by defense
counsel or other indication of prejudice, the State asserts
that HRPP Rule 7(a) has been complied with or, in the
alternative, no prejudice has resulted and thus any error
would be harmless[.]
"The interpretation of a court rule is reviewed de
novo . . . ." State v. Choy Foo, 142 Hawai‘i 65, 72, 414 P.3d
117, 124 (2018) (citation omitted).
Latu's reliance on Basnet is unavailing. In Basnet,
the defendant was charged with a misdemeanor abuse charge, was
arraigned in the family district court, and requested a jury
trial at which point the case was transferred to the circuit
court. 131 Hawai‘i at 296-97, 318 P.3d at 136-37. Basnet argued
that the family circuit court failed to arraign him within
fourteen days after the district court's oral order of
commitment and after he requested a jury trial. Id. at 293-94,
318 P.3d at 133-34. Basnet objected to this error before the
circuit court and throughout trial. Id. at 297, 318 P.3d at
137. The supreme court held that HRPP Rule 10(a),12 which
applies to a defendant held by district court and committed to
reading of the complaint to the defendant and calling upon defendant to
respond thereto." Id.
12 HRPP Rule 10, entitled "Arraignment in circuit court," provides
in subjection (a) that:
(a) A defendant who has been held by district court to
answer in circuit court shall be arraigned in circuit court
within 14 days after the district court's oral order of
commitment following (i) arraignment and plea, where the
defendant elected jury trial or did not waive the right to
jury trial or (ii) initial appearance or preliminary
hearing, whichever occurs last.
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circuit court, requires that a "defendant be arraigned in
circuit court after the order of commitment" and that because
Basnet was not "arraigned in the family circuit court after the
family district court's order of commitment" in 14 days, the
family circuit court erred. Id. at 296, 318 P.3d at 136. The
Basnet court further held that because Basnet maintained an
objection to the lack of arraignment prior to and throughout
trial, the error could not be considered harmless and Basnet did
not need to prove that he was prejudiced by the error. Id. at
298, 318 P.3d at 138. Basnet is inapposite because Latu was not
committed to circuit court, and HRPP Rule 10(a) does not apply.
Here, Latu was not orally charged for OVUII in open
court and in violation of HRPP Rule 7(a), as Latu claims.
Because Latu was charged with OVUII, a non-felony, HRPP Rule
5(b)(1) applied. The record reflects that the Complaint was
electronically filed on December 28, 2021, and Latu did not
argue below or on appeal that he did not receive a copy of the
Complaint. Prior to trial, on May 11, 2022, the District Court
requested the State to rearraign Latu in "open court," during
which the prosecutor read the Complaint and the "essential
facts" that Latu was charged with. The District Court then
entered a not guilty plea on behalf of Latu.13 The record
reflects that there was no oral charge of OVUII in violation of
HRPP Rule 7(a), and that the arraignment complied with the
applicable rule, HRPP Rule 5(b)(1). See Choy Foo, 142 Hawai‘i at
72, 414 P.3d at 124.
For the foregoing reasons, we affirm the (1) January
27, 2022 "Order and Notice of Entry of Order," (2) May 11, 2022
13 The record reflects that after the prosecutor read the Complaint
in open court, the District Court did not "call upon [] [Latu] to plead" and
Latu did not respond to how he pled as required by HRPP Rule 5(b)(1); rather,
the District Court entered a not guilty plea on behalf of Latu. Latu did not
object to this below and does not raise this as an issue on appeal.
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"Judgment and Notice of Entry of Judgment," and (3) February 23,
2022 "Findings of Fact, Conclusions of Law, and Order Denying
[Latu]'s Motion to Dismiss," all entered and filed by the
District Court of the Second Circuit.
DATED: Honolulu, Hawai‘i, May 18, 2023.
On the briefs:
/s/ Katherine G. Leonard
Gerald K. Enriques,
Presiding Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.
/s/ Clyde J. Wadsworth
Associate Judge
Matthew S. Kohm,
for Defendant-Appellant.
/s/ Karen T. Nakasone
Associate Judge
12